Opinion
No. 2010-05114.
April 19, 2011.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated April 19, 2010, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
Before: RIVERA, J.P., DICKERSON, LOTT and COHEN, JJ.
Ordered that the order is affirmed, without costs or disbursements.
A court has the discretion to depart from the presumptive risk level, as determined by use of the risk assessment instrument, based upon the facts in the record ( see People v Bowens, 55 AD3d 809, 810; People v Taylor, 47 AD3d 907, 907; People v Burgos, 39 AD3d 520, 520; People v Hines, 24 AD3d 524, 525). However, "utilization of the risk assessment instrument will generally `result in the proper classification in most cases so that departures will be the exception not the rule`" ( People v Guaman, 8 AD3d 545, 545, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Bowens, 55 AD3d at 810; People v Taylor, 47 AD3d at 908; People v Burgos, 39 AD3d at 520; People v Hines, 24 AD3d at 525). A departure from the presumptive risk level is warranted where "there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Bowens, 55 AD3d at 810; People v Taylor, 47 AD3d at 908; People v Burgos, 39 AD3d at 520; People v Hines, 24 AD3d at 525).
Here, the County Court providently exercised its discretion in denying the defendant's request for a downward departure, as the defendant failed to demonstrate the existence of mitigating circumstances of a kind, or to a degree, not otherwise adequately taken into account by the guidelines ( see People v Mendez, 79 AD3d 834, lv denied 16 NY3d 707; People v Maiello, 32 AD3d 463).